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Daggett v. Keshner

Supreme Court of New York, Appellate Division

October 26, 1954

ALBERT B. DAGGETT, as Administrator of the Estate of JAMES L. DAGGETT, Deceased, et al., Respondents,
AL KESHNER et al., Defendants, and HYMAN BERIBITSKY et al., Individually and as Copartners Doing Business under the Name of B & S GARAGE, Appellants.

Page 734

APPEAL from an order of the Supreme Court at Special Term (GREENBERG, J.), entered June 10, 1953, in New York County, which denied a motion made by defendants-appellants for a dismissal of the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action.


William L. Shumate of counsel (Cusack & Shumate, attorneys), for appellants.

Morris Pottish of counsel (Wilson, Mangan & Sweeney, attorneys), for respondents.


Two policemen were injured, the one fatally, the other seriously, in an explosion in premises spread with gasoline for the purpose of setting fire thereto and recovering insurance. This followed a scheme between the occupants and two others retained for the purpose of burning the premises. These two purchased gasoline at a garage. The purchases were in quantities exceeding those permitted by law--the purchasers not holding a permit for the transportation, storage, sale or use of the gasoline--and carried away in containers also forbidden by law. Gasoline thus procured was spread around the insured premises by the conspirators. One of the policemen was killed and the other injured when they entered the premises for the purpose of apprehending the conspirators and an explosion occurred. [a1]

Plaintiffs seek damages for the death of the one and the injuries to the other policeman. Defendants, the garage owners who sold the gasoline in violation of the statute, appeal from denial of their motion to dismiss the complaint for legal insufficiency.

Page 735

The order sustaining the complaint should be affirmed.

Plaintiffs do not ground liability of the defendant garage owners on common-law negligence. Instead, they rely upon a provision contained in the Administrative Code of the City of New York. This provision (ยง C19-153.0) imposes on the vendor of any compound or mixture sold in violation of certain provisions of the code a penal liability, where death ensues from burning by explosion, and a civil liability for bodily injuries.

Special Term held that the complaint sufficiently alleged a violation of the statute, that section C19-153.0 of the code conferred a cause of action in the event of injury or death from an explosion of gasoline sold without the permit required by the code and that, therefore, a good cause of action had been pleaded by plaintiffs.

Defendant garage owners contend there is insufficient allegation of causal connection between the illegal sale and the accident or the injuries sustained, and that, therefore, the complaint should have been dismissed.

Since the acts of conspirators--pouring the gasoline into a large drum and then, by means of fire pails, spreading it about the insured premises--and the resulting explosion of the gasoline were acts that occurred between the illegal sale and the injuries sustained by the policemen, the question in the case is whether the pleading, taking its allegations for this purpose as true, establishes sufficient causal connection to warrant the imposition of statutory liability.

In the field of common-law negligence it is elementary that the act of the wrongdoer which constitutes negligence must be the proximate cause of the accident and plaintiff's injuries. Where a statute defines an act as wrongful, it has been said that if the enactment were intended to benefit the public at large, or only a limited class of which the injured person is not a member, its violation would not constitute, ipso facto, negligence. In that case, the violation of the statute, however, if otherwise relevant, is evidence of negligence which the jury may consider in conjunction with all other relevant proven facts. (Amberg v. Kinley, 214 N.Y. 531, 536; Stern v. Great Island Corp., 250 A.D. 115, 116; cf. Martin v. Herzog, 228 N.Y. 164.) A proximate causal connection between the wrongful act and the accident must nevertheless exist in order for liability to be imposed. (Hallenbeck v. Lone Star Cement Corp., 273 A.D. 327, affd. 299 N.Y. 777.)

Where, however, the statutory duty of care was imposed for the sole benefit of a class of persons, ...

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